CIRCUMSTANTIAL EVIDENCE

In the case of USA v Nicaragua, evidence produced by what the Court has termed a
disinterested witness, who has nothing to gain or lose from its outcome, may well be afforded
prima facie superior credibility.

And with regards to the value that media upholds, in the genocide case, the court stated three
criterion for the same, i.e, source of items of evidence and also the process of generation. Here,
the source is neutral and not biased and in furtherance, and the product is a careful report by a
media agency, which have acquired international reputation and have nothing to derive
anything out of it. Therefore, the circumstantial evidence here stands valid with respect to the
media reports as the criteria being fulfilled for the same.

Therefore, reports from independent international organisations and departments of the

United States of Bemerica can be said to have probative value before the ICJ.

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Good afternoon your excellencies! My name is Vibhu Pahuja, I am the second agent on behalf
of the applicant.

Restatement of facts- in the instant case, Khyna has not only developed and deployed the virus
globally but however, has also not cooperated with WHO as Khyna did not provide information
to WHO under the sufficient time frame and has also failed to provide correct and sufficient
information.

Our third submission addresses that Khyna has violated instruments of International Human
Rights Law and Customary International Law

#1 Khyna has breached its treaty obligations under International Health Regulations

- Khyna is a de facto party to the IHR by the virtue of Article 22 of WHO constitution
which requires all the members of WHO to follow the regulations. Khyna, is a member of
WHO, as provided under 1st clarification.
(a) Article 6 and 7 of the IHR requires each State party to assess events or evidence of
events that may be of unexpected or of unusual public health within its territory that
may constitute public health emergency of international concern and notify the WHO
about it within 24hrs of assessment.
(b) The four conditions for assessment of public health impact include seriousness of
public health impact, unusual or unexpected event, significant risk of international
spread and international travel or trade restrictions, following which, accurate
information should be provided to WHO
(c) The Khynese administration confirmed the first case of COVID-19 on December 8,
2019 but failed to inform WHO till the last week of December, wherein on 12 th
December, Dr. Li Benliang detected the nature of the virus resembling SARS, which
has been also recognized by the IHR as a disease of unusual or unexpected nature and
having serious public health impact, under annexure 2. Later on Dr. Li Benliang was
summoned by by the Luhan Public Security Bureau, who was later succumbed by the
Corona Virus.
 (d) By the virtue of circumstantial evidence here, it can be held that Khyna deliberately
tried to not disclose the nature of the virus, which included human to human
transmission as well.
(e) Khyna not only failed to provide the report under the required time period but also
failed to provide sufficient and accurate information with relation to human
transmission of the virus, and the report was provided only after public awareness of
the virus.
(f) Therefore, there was a breach of Article 6 & 7 of IHR by Khyna

#2 HOLDS- Khyna violated Customary International Law by violating Right to Life and Right to
Health

- The obligations contained regarding right to life and right to health have been provided in
Article 6 of the ICCPR and Article 12 of ICESCR and have been maintained in the
Article 3 and 25(1) respectively in the UDHR as well.
- In due regards to this, it was maintained in the Barcelona Traction case that the right to
life and other socio economic rights of individuals are owed erga omnes.
- Here, considering the fact that UDHR represents opinion juris of the states and now,
ICCPR and ICESCR embodying the norms of UDHR, and with this, both opinion juris
and state practice being satisfied, the provisions contained therein amount to CIL, with
the same being reiterated in the case of Velasquez Rodriquez v Honduras in Inter
American Court of Human Rights.
- Firstly, Khyna has violated the right to life of people under its jurisdiction as by the acts
of Luhan Virology Lab, Khyna infected the virus into a miniscule of its population,
thereby, intentionally depriving them of Right to Life, as this was a foreseeable and
preventable life terminating harm and injury, thereby satisfying the provisions as
highlighted in the case of Suarez de Guerrero v Columbia.
This act of Khyna has led to death of more than 3,000 people in Khyna alone, as per the reports
given by Khyna, in which there was a deprivation of right to life.
- For the argument on Right to Health, it must firstly be taken into account that human
rights treaties here suppose extra territorial obligations, when the actions of a state
 produces its effects outside its territory, as has been affirmed in the case of Al Skeini and
others v. UK by the ECHR. This means that states are bound to respect the rights of
others regardless of their territorial borders. Therefore, Khyna has an obligation to
maintain the right to health of people not under its territorial jurisdiction as well.
- Khyna has deprived people of their right to health as it did not take full realization of
prevention, treatment and control of an epidemic and interfered with the right to health of
others as it failed to create a proper mechanism to deal with the epidemic as it allowed
infected people to move outside the Khynese territory, thereby, transmitting the virus to
people all around the world.

- By this virtue, Khyna has breached its obligations erga omnes, and violating the
Customary International Law.

#4 Bemerica therefore derives a standing in this case

- Bemerica derives standing from Article 42(b) of the ARSIWA according to which an
injured state is entitled to invoke responsibility of another State for the breach of an
obligation owed to the international community as a whole, which specially affects it.
- This has specially affected Bemerica, as the number of cases is higher in Bemerica in any
other country, infecting around 450,000 people.
My next submission holds that the acts of Khyna entail state responsibility

As has been mentioned by the ICJ in its advisory reports, the conduct of any organ of a State
must be regarded as an act of that State, and the state is responsible for the organs acting in its
capacity. Since it has been proven that Khyna is responsible for the internationally wrongful
conduct of violating BWC, IHR instruments and CIL, the wrongful acts shall be attributed to
Khyna.

#1 Military Laboratories forms a part of organ of the state, violating article 4 of the ARSIWA

Article 4(2) of ARSIWA defines a state organ as "any person or entity which has that status in
accordance with the internal law of the state."

The act of engineering the virus in the Khynese Military Laboratories entails state responsibility
as the military forms an organ of the government under Art 148 of the 4 th geneva conventions.
Activities of the armed forces or the military are extremely wide, with research and
development of weapons forming an essential part of it.

Any act carried therein, even if it exceeds limitations or act contrarily to what the state had
directed, the state shall be held responsible, as has been iterated by the ICJ in DRC v Uganda.

So even if the laboratories did not act in accordance with the directions given by the
government, state responsibility can still be entailed for any act carried therein. In this case,
state responsibility can be attributed towards Khyna.
#2 Dual use infrastructure that Khyna proposed forms a part of state agency, violating article 5
of the ARSIWA

In the case of Noble Ventures v. Romania, an entity of state was defined as wide variety of
bodies, which may though not for a part of an organ of the state, may be empowered by the
law of a State to exercise elements of governmental authority.

In this case, the dual use infrastructure that was announced and empowered by Khyna, which
indicated of a large scale BW program exercises elements of governmental authority as it
accounts to an entity of the government, considering the fact that it was empowered by the
state to carry out certain functions and were functioned by the state. In the case of Jan de Nul
NV and Dredging International NV v. Egypt, it was iterated that as per CIL, commission of acts
by entity empowered by laws of the state to exercise elements of governmental authority, are
attributable to the state.

#3 the acts of Luhan Virology Lab were acknowledged and adopted by Khyna, violating article
11 of ARSIWA

The acts of Luhan Virology Lab which developed and deployed the virus into a miniscule of
0.01% population, which caused global spread of the virus are attributable as Khyna
acknowledged it, even though not expressly, but condoned it. It must be noted as per the
judgment in the Corfu Chanel case, a wilful neglect of duty to investigate a wrongdoing results
in state responsibility. As Khyna did not investigate and condoned the activities committed in
the lab, state responsibility can be entailed.

**REPARATIONS
Conclusively, since Khyna is responsible for an internationally wrongful act, Khyna is liable to
make reparations in the form of compensation to Bemerica for the damaged caused by its acts.

FOR THE FOREGOING REASONS, THE APPLICANT RESPECTFULLY REQUESTS THIS HONOURABLE
COURT TO FIND, ADJUDGE AND DECLARE THAT:

A. THE ACTIONS OF KHYNA DO NOT FALL WITHIN ITS RESERVATION, AND ACCORDINGLY THE
COURT HAS JURISDICTION OVER BEMERICA’S CLAIMS;

AND IN ANY EVENT:

B. KHYNA HAS VIOLATED ITS OBLIGATIONS UNDER THE BIOLOGICAL WEAPONS CONVENTION
AND CUSTOMARY INTERNATIONAL LAW IN ITS DEVELOPMENT OF BIOLOGICAL TOXINS;

C. KHYNA HAS VIOLATED INTERNATIONAL HUMAN RIGHTS LAW INSTRUMENTS AND

CUSTOMARY INTERNATIONAL LAW; AND

D. THERE IS STATE RESPONSIBILITY FOR KHYNA WITH REGARD TO THE GLOBAL PANDEMIC.